There's No Law But The Law

The existence of the law is one thing; it's merit and demerit another.  Whether it be or be not is one enquiry; whether it be or be not conformable to an assumed standard is a different enquiry.

These are words of John Austin, who is considered to be the founder of a philosophy of law called "legal positivism."  He was a contemporary of Jeremy Bentham.  J.S. Mill attended his lectures on law.

A legal positivist maintains that the law is something that exists regardless of whether it's good or bad.  It is something different and separate from what's described as natural law.  When we study the law as a functioning system, therefore, it's specious to contend, as people too often do, that it isn't really the law because it doesn't meet a particular moral standard, whether that standard be natural law, the commandments of God, or some other standard by which right and wrong, good and bad may be determined.

According to the legal positivist, it's incorrect, therefore, to claim that a law considered wrong or bad according to some such standard isn't a law.  It's a law alright.  It may be a bad one.  We may claim it should be changed, or shouldn't be followed, but a law it is and so it shall remain until changed or revoked.

There are those who have difficulty accepting this view.  They appear to believe that the law must be something else; something higher, something that's just, fair, equitable.   A law must comport with natural law, and recognize and uphold natural rights.  The law according to their point of view isn't the law we humans and our governments may adopt, promulgate and enforce.  The real, true law is otherwise there in some respect, written in the stars as it were, or existing in the mind of God.

The proponents of the American and French Revolution were given to maintaining that the laws they objected to were contrary to natural law and/or natural rights, which were superior to the law imposed by those they rebelled against.  Thus, they were not appropriately law under this conception.  Not being law, there was no obligation to follow them and even a positive duty to defy them.  This apparently was felt necessary to justify rebellion.  It may be it was believed that characterizing them in this fashion created more of a foundation for revolution then characterizing them as merely bad, unjust laws.  A tyrant's laws are more evil if they constitute a violation of the laws of God or Nature than if they only seem bad to other, fallible, humans.

Perhaps this was an understandable view when it was claimed that kings ruled by divine right and governmental authority could not be challenged without being dramatically unjust.  Those times are gone, though.  When man is the measure of all things, appeals to an unwritten law are unavailing, or at least unconvincing.  

Some people tend to believe that the acceptance of legal positivism requires that we believe all laws, all systems of law, are the same in merit, and that any law must be obeyed.  That's not something that follows from the premise that bad laws are laws nonetheless.  It's a conclusion which in its own way is derived from the belief that the only real law is that of nature or nature's God.  In that case, of course, the laws must be obeyed.  Interestingly, those who don't accept legal positivism will also tend to be those who claim that laws they find objectionable need not be followed.  In that case the law is merely a human contrivance which may be violated, when it serves to protect, for example, rights we believe don't exist, laws which protect people we don't believe should be protected, or laws which allow conduct we believe should be eradicated instead of protected.

Legal positivism imposes a most useful distinction.  That distinction is between the existence of the law and its worth, or merit.  Knowing what a law is, why it was adopted, how it functions in a legal system, is far more useful in determining whether it should or should not be changed than some effort at deduction from assumed standards, especially those that are supposed to be embodied in nature or exist in the mind of God.  

The Age of the Dilettante

I was reading William Hazlitt's essay on Jeremy Bentham, and it struck me that a well-written essay is a very fine thing.  If well-written, an essay may invoke admiration even when one disagrees with the author.  I don't disagree with much of what Hazlitt writes concerning Bentham, but think that certain of his assertions regarding that remarkable man and his work would send Bentham spinning in his grave, if he was in a grave and not for the most part sitting stuffed in a chair at University College London.  I think though that one might disagree with a skilled essayist and still enjoy and benefit from reading his/her essays.

A good essay is a coolly intelligent, witty, ostensibly analytic, discerning bit of observation and commentary, and so I fear essays will become rarer and rarer in these exclamatory, frenetic times of mere assertion.  Montaigne is generally considered the inventor of the "modern" essay, and remains a model.  I can think of few I would consider able essayists in recent history.  Gore Vidal wrote some fine ones indeed, but seems now to lack the patience needed to engage in this kind of effort.  The late Christopher Hitchens wrote some admirable essays, though he became more of a polemicist than an essayist over time.  The same may be said of his fellow "new atheists" in my opinion.  They say John Updike wrote formidable essays, but I must confess I have never been inclined to read anything he wrote.  George Orwell was an impressive essayist; Graham Greene was as well.

The technology which now allows us to spray our opinions over the world with little or no effort (and which makes this blog possible, of course) may lead to the extinction of the essay, or at least of any extended essay--and perhaps much else.  We bloggers, texters, Twitterers, etc. become used to expressing ourselves effortlessly, and unfortunately that which is done without effort is often done without thought, or at least without skill, and skill is essential to a good essay.  It's useful to pause, now and then, to see if one is making any sense, or is capable of making sense out of what one is observing or reading and to pause today is to not react, and reacting immediately is what we seem to feel is appropriate if not necessary.  And react is something we most certainly can do; we can respond to most anything in an instant, without reflection or effort, and are increasingly inclined to do just that.

A good essay is an examination of someone or thing, and examination requires reflection.  Reflection is not encouraged when one may be incessantly interrupted, or when one seeks intrusion, through the nominally beneficial technology we have with which to amuse and enlighten ourselves.  Those commercials where smug possessors of technology mock others as being "so 15 seconds ago" are amusing in some respects, foreboding in others.

We may be seeing the beginning of the Age of the Dilettante, where all are not by choice but necessarily somewhat knowledgeable regarding but without real commitment to any art, theory, subject, philosophy, person, association simply because we may know them superficially with such ease.  We must strain ourselves to learn something well, indeed to even to think, when information is forthwith available.  I wonder if we will find the effort to be too much of an inconvenience.